For nations ruled by democracy, it is essential to keep everything the government does as transparent as possible. One of the ways that transparency happens is through confirmation hearings held by the US Senate to vet and learn more about a candidate nominated by the president of the United States for federal office. This is to prevent the appointing of unfit, unqualified or questionable persons into public office.

For major confirmation hearings, the public gets to witness the confirmation hearings by watching it streamed on the internet or televised live from the comfort of their homes, as was the case of Supreme Court nominee, Sonia Sotomayor, in 2009 and more recently, Supreme Court nominee, Brett Kavanaugh, in September 2018.

The Basics of Confirmation Hearings

capitol building

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The Constitution

According to the Constitution, Article II section 2 states that the President, ” shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” The Constitution ensures that both the executive and the judiciary are tasked with nominating and appointing of Supreme Court judges, respectively.

In addition to this, the constitution is clear that the public shouldn’t have the final vote on who gets confirmed among the nominees. It is on this premise that the Senate seats to vet a Supreme court nominee before confirming him or her for the job. There have been historical instances that a nominee has not been confirmed by losing the popular vote. This means that the hearing could go either way.

Early Confirmation Hearings

According to Paul M. Collins, Jr., co-author of Supreme Court Confirmation Hearings and Constitutional Change and Lori Ringhand, a law professor; the first hearing of a nominee took place in 1873. The president then, Ulysses S. Grant was forced to withdraw Attorney General George H. Williams as a nominee when it came to light that Williams had used the Department of Justice funds for household expenses.

The first public hearing was in 1916 for Louis Brandeis who had been nominated by President Woodrow Wilson. His nomination came about from people branding him the “Peoples Lawyer” due to his interest in public work and his efforts to fight anti-Semitism. It took the committee four months to deliberate after he refused to testify but was eventually confirmed.

There is also the possibility of confirmation hearings to be highly politicized. The president’s supporters and members of his party will focus mainly on the nominee’s academic qualification and point out his experience and preparedness while the opposition might major their arguments on the nominee’s background and the differences in policy issues.

Confirmation Hearing Process

senate building where confirmation hearings are held

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The decision to confirm a nominee is anteceded by a process that is transparent to the public. The confirmation hearing process is rigorous and complicated. There are many steps and procedures that must be followed to ensure the process is successful.

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    When there is an opening for a position that requires a presidential appointment, the president consults with Senators before announcing a nomination.
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    The president, through the White House, chooses a person best suited for the job, and sends a formal submission to the Senate for consideration.
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    The Senate Judiciary Committee then holds a hearing on the nominee. The nominee has to fill out various forms such as a financial disclosure report and a national security questionnaire guided by the Office of Government Ethics. It takes about a month for the committee to gather all the relevant documents and information that they might need for the confirmation hearings. The FBI conducts an extensive background check and tables a report before the committee while an ethics official reviews the financial disclosures and helps the nominee in case of conflict of interest.
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    When the hearing is in session, witnesses are called upon both supporting and opposing views are heard. The Senators question the nominees on everything like their academic qualifications, judgments, controversies surrounding them, belief systems and so on. The process makes sure to scrutinize every single detail of the nominee’s life and career.
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    Upon completion of the hearing, the Judiciary Committee votes on the nomination and sends its recommendation to the Senate. The recommendation may vary depending on their findings; the committee can confirm, reject or provide no recommendation at all. The Committee may refuse to act at several points–immediately after receiving the nomination, after conducting its investigations or after holding the confirmation hearings. Even if the Committee fails to act, there is still a chance that the Senate could bring the nomination to the floor for a vote.
  6. 6
    Senate debates the nomination.
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    After the debate, it is time for the Senate to take a vote on the nomination. A simple majority is required for the judicial nominee to be confirmed by the members present. In case of a tie, the Vice President casts the deciding vote. The Vice president presides over the Senate.

Earlier, the Senate used to allow filibustering–a process where one or more members would debate on the issue to delay or prevent the house from making a conclusive decision.  For them to end this endless debating, they needed the votes of 3 fifths of the Senate or 60 members (also known as the cloture vote). This changed in April 2017 when the Senate lowered the number of required votes to 51 to end debated on Supreme Court nominations commonly referred to as the “nuclear option.”

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    The GPO Access makes the confirmation hearing transcripts available to the public.
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    In case a nominee fails the confirmation vote, the president nominates another person, and the process is repeated.

So far, the Senate has rejected only 9 candidates nominated by the president for Cabinet positions. In 1834 and 1868, Democrat Andrew Jackson lost the confirmation hearing of both Roger Taney for treasury secretary by a vote of 28-18 and Henry Stanbery for attorney general by 29-11.

There is also the option of withdrawing nominations before a confirmation hearing. There have been 13 Cabinet nomination withdrawals from Senates consideration, 10 of which have occurred under the past three presidents due to political struggles. In the 1990s, 5 of Bill Clinton’s choices withdrew or were withdrawn, in 2001 and 2004 respectively, two of George W. Bush’s nominees withdrew, and in 2009, three of Barack Obama’s followed suit.

Best Practices for Nominees

Kirstjen Nielsen Confirmation Hearing - WASHINGTON – Kirstjen Nielsen is sworn in at a hearing on her nomination to become the 6th Secretary of the Department of Homeland Security by the Senate Homeland Security and Governmental Affairs committee in Washington, D.C., Nov. 08, 2017. Nielsen would be the first former Department of Homeland Security employee to become the secretary. Official DHS photo by Jetta Disco.

Honesty and Transparency

The process of going through a confirmation hearing may be nerve-wracking because everything is put out in public. The background checks may be invasive, and some nominees such as U.S. Supreme Court nominee Sonia Sotomayor have endured insults, annoying questions about her cases, writings, speeches, legal opinions, and intensive drilling into her professional career.

This is always true for any candidate going for any high ranking job in public service, and it is best to prepare for anything that the media, public and most importantly the Senate may throw your way. It would be wise if the nominee’s team did their investigation so as not to be blindsided with new information. Honesty and transparency are vital in the team so that responses are tailored to sound more natural.

Practice Beforehand

This happens through mock exercises that mimic the confirmation hearing where the nominee gets questions similar to those asked by the Senate Judiciary Committee. The aim is to prepare the nominee so that there aren’t questions that they have not heard and can’t answer.

The mock hearing and the real hearing have to be as similar as possible to get the desired outcome. The start time, break times and recess should all be scheduled as the actual confirmation hearings so that the nominee gets used to the process. The intensity of questioning should be grueling and aggressive. The Senators will most likely be using the same tactics to intimidate the candidate. This helps the nominee get into the frame of mind to handle anything thrown at them. It ensures that even the most obnoxious questions will not get them riled up.

Videotape Mock Hearings

A candidate can have the mock hearings videotaped to be used later for analysis, critique, and to identify areas that need improving. This is important because the feedback provided can help improve the performance in the mock exercise until everyone is comfortable. The answers that the nominee gives at the mock hearing should be precisely those that they will provide at the actual confirmation hearing to avoid confusion.

Conclusion

A confirmation hearing is provided by the constitution to vet the people that take over an important public office. It is a beacon of democracy, and the public can witness the process. Nominees should, therefore, put their best foot forward and prepare well so that they can serve the public once they are nominated. It may be a long grueling process, but it is provided in the constitution to prevent malpractices. The fact that two arms of government are working together to find a suitable candidate should be respected and celebrated.

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